94 F. 487 -

94 F1d 487

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Case Text

IN RE ANDERSON.

487

In

nil

ANDERSON et aL

May 20, 1899.)

PERSONS IN CUSTODY OF STATE AUTHOlt·

(Circuit Court, W. D. North Carolina.

L

FEDERAL COURTS-HABEAS CORPUS ITIES.

It Is a general rule that a person held In custody by the authorities of ,. state, charged With an offense, will not be discharged on a writ of habe8.111 corpUS by a federal court before his trial, but will be left to submit his defense to the state courts, and, if denied any rights under the federal constitution or laws, to pursue his remedy by direct proceedings In error to the supreme court of the United States; and It isonly In exceptional cases that a federal court will exercise Its discretionary power to Interfere In the first Instance. 1

I.

SAME.

Where, however, the act for which a person Is held in custody by state authorities is one whlcb was done or omitted In pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof, as where It was done as an officer of the United States in the execution of & process of a federal court of competent jurisdiction, and the officer acted within his jurisdiction and the scope of his process, he Is entitled to federal protection, and will be discharged on a writ of habeaS corpus. 'Rev. St. § 788, providing that marshals and their deputies shall have in each state the same powers in executing the laws of the United States as sheriffs and their deputies may have by law in executing the laws thereof, refers only to the district in which the marshal is appointed, and gives bim 110 authority to act as an officer outside of such district. A marshal wllo attempts to execute a process outside of his own distriCt and in another state, although It is one relating to real estate, and the court jn his district has assumed to exercise jUrisdiction to determine rights therein, al).d in going upon the land he follows the command of his writ, acts as a trespasser, and the writ .affords him no protection. Petitioners for a writ of habeas corpus in a federal court, a deputy United States marshal of the Eastern district of Tennessee and his assistants, were arrested by the authorities of North Carolina, charged with the commission of an assault and other trespasses In that state. On the hearing It was shown that the acts charged against petitioners were committed while executing a writ of possession awarded by the United States circuit court in the Northern division of the Eastern district of Tennessee upon a decree entered in that court; that petitioners arrested the defendant found In possession of the land, and held him In custody for two days, while they removed his effects to a distance from the land, and dismantled his house; also, that the land was situated In the state of North Carolina. There was also evidence tendinlr to show other acts of petitioners not warranted by the process under which they assumed to act. Held, iliat upon such showing they would not be discharged.

8.

UNITED STATES MARSHALS-ExECU1'ING PROOESS OUTSIDE OF DISTRICT.

"

SAME.

G.

FEDERAL COURTS - HABEAS CORPUS - ARREST OF UNITED STATES MARSHAL BY AUTHORITIES OF ANOTHER STATE. .

EWART, District Judge. The petition of l\furphy L. Anderson avers that he is a citizen and resident of Knox county, Tenn., and that he is a dl,lly and., empowered ,marshal of the United States for the Eastern district of Tennessee, and that he is iHe-gaUy, unjustly, and unlawfully held in dliress,imprisoned, and (feta\lledinJbe ,town of Murphy,Jn Cherokee cou;nty,:N.. C., undei' the and cl),arges: That ,under a judgment ren dered: in, the circuit court of the: :Uuited States for the Northern divIsion dfthe Eastern district of Tennessee, at Knoxville, on the 11th tUly; }892, in No. 86,t(Stevenson et al. v. Lovingood et al./, a 'writ ,Qf possession for lands thel'ein specifically described was awarded against the defendants in said sUit; that in pursn:mce ,of said judgment a writ of possession was issued by the clerk of the circuit court on the 21st day of April, 1899, and was regularly plaJ:ed, fn the hands of the petitioner Anderson, as deputy enited uiarshal, to execute; that in pursuance of this duty he proceeded toihe lands described, and, anticipating some trouble, he summoned, aahis posse and assistants; his co-petitioners, Barr and Metcalf, to hiin in the peJ'formance of his duty under the said writ of possessioti; that while in the discharge of said duty, and while peaceably, lawfully, arid cautiously executing the said writ, assisted by his co-petitioners, Barr and Metcalf, he was, with his co-petitioners, arrested by one J. N. Elliott, to be a constable in the county of Cherokee, N. C., by whom he was removed to the town of Murpby, where he is now held a prisoner. The, petitioner further avers that on the 29th day of April, 1899, while the said Anderson. Ba:rr, al;ld Metcalf were held in custody by the said Elliott, one A. J. Martin, claiming to be the sheriff?f tM county of Cherokee, served other papers on the said Anderson, Barr, and Metcalf, as follows, viz.: A magistrate's warran.t charging the said Anderson, Barr, and calf with assaulting Jasper Fain with deadly weapons; second, a magistrate's warrant charging saidAndersol}, Barr,and Metcalfwith making an assault upon and imprisoning Fain without warrant or authority or reasonable cause; third, by serving a ,process in a civil suit brought by the said Fain against the said Anderson, Barr, Metcalf for damages for false imprisonment in the sum of $10,000. which la,st-named papers were served upon said parties,-and said lI/;lrtin now claHns to ,hold said Anderson, Barr, and Metcalf under lU'I!est by him. The petitioners further aver that all these charges are ,based solely and entirely on their cautious,careful, and legal performance' of their duties in executing the said writ of possession. and that the arrest of petitioners on the part of the f,;aid Elliott and lJ;artin is' part of a delibeuate scheme, plan, and conspiracy on the part of the: said Fain and his associates to prevent the execution of the said juqgmen! agains;t him, and. are mere pretenses to that end. Petitionerfur'tner averstha,twhen Anderson, Barr, and)'1etcalf were captured and put in duresfj\ under of arrest by the said Elliott. they were on the watersrf Tellico river, in )Ionroe county, Tenn., upon or near land described in said writ of possession, and in the peaqeable ,apd d1l"\chm;,geof their,.dl,lties. Petitioners further aver that when they were arrested by the said Martin they were then:

IN RE ANDERSON.

489

in duress and custody of men who were county officials of Cherokee county, where they have been illegally and forcibly taken, and that all of the said arrests were illegal and without probable cause, ane that the said petitioners are wrongfully, illegally, and falsely deprived of their liberty,· and are illegally under duress. The petitioner Metcalf avers that he is a citizen of the United States, and a citizen and resident of Kno;&: countY,Tenn., and that he is illegally and unjustly and unlawfully held in duress, imprisoned, and detained in the town of :Murphy under the same circumstances and charges as set out by the petitioner Murphy L. Anderson. The petitioner 'William N. Barr avers that he is a citizen of the United States, and citizen and resident of Monroe eounty, Tenn., is the duly-eleeted and acting sheriff of said county, and that he is illegally, unjustly. and unlawfully held in dures.s, imprisoned, and detained in (,'Uid town of .:\lurphy under the same circumstances and charges set out in the petition of Murphy L. Anderson. . If it be true, as stated in the petition, that these petitioners are held in the custody of the authorities of Cherokee countv "for an act done in pursuanee 'of a law of the United Rtates. or of order. process or decree of a court or judge thereof," there does not seem to be any doubt but that under the statutes of the United Rtates on that subjeet,they should be discharged by this court. Rection 753. Rev. Rt., reads as follows:
"A writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by eolor of the of the rllited States. or is committeil for trial before some court thereof. or is in custody for an aet dOlleor omitted In pursuance of a law of the United States. or of an Order. process or de.cree of a court or judge thereof. * · *"

And section 761 declares that when, by writ of habea,s corpus, the petitioner is brought up for hearing"The court or justice or judge shall proceed in a summary way to determine the facts of the case by hearing the testimony and arguments and thereupon to dispose of the party as law and justice require."

This, of course, means that if he' is held in custody in violation of the constitution or law of the United States. or for an act done or omitted in pursuance of the laws of the United States, he must be discharged. The facts in this case, as appear from the evidence heard by the court, are as follows: A bill in equity was filed in the circuit court of the United States for the Northern division of the Eastern district of Tennessee by Stevenson et a1. and George P. 'Vetmore, citizens. respectively, of the city and state of New York and of the state of Rhode Island. against Lovingood, Woody, Hoss, Fain, and Marl', all citizens and resIdents of the county of Monroe, state of Tennessee, and Nixon, a resident and citizen of Hamilton county, Tenn. The plaintiffs sued defend· ants for the recovery of certain tracts of land situate in l\fonroe county, in the stateofTennessee; and subpwna was issued, requiring: the said defendant!" to appear and answer or demur, returnable August 5, 1889. Process was returned executed as to LOYingood, 'Voody, Hoss, and Marr; Fain not to be found. Kixon and Man,

490

94 FEDERAL REPORTER.

fendants, filed a disclain;1er, disclaiming all right, title, or interest in any part of the said lands; and on the 26th of January, 1889, an order was made by the circuit court.that as to defe;ndantsLovingood, Woodl}\:and Hoss, bill ,s.hould be as confessed, and the cause set for, hearing ex parte. An alias subpoona was issued as to the defendant Fain. OnAhe 27th of January, 1892, the cause having been continued from time to time,the marshal having returned that Fain could not be found; in his district, it was ordered by the court that Fain be directed to appear, plead, answer, or demur to the complainants' bill on or before March 1, 1892, and that a copy of this order be served; on said Fain, if practicable, wherever found. It was further ordered that, in. case Fain, did not appear within the time so limited, the court, upon proof .of the service or publication of the said order, wquld entertain. jurisdiction, and proceed to the hearingand adjudieation of the above suit as if the said Fain had been served with process in said district. On the 26th of May, 1892, service of said process was made on Fain by the United States marshal of the Western district of North Oar9lina, through bis deputy, by delivering a cc>py of this order to the said Ji'ain at Mucphy, N. C. On signed by his honor, D. M. the 11th of August, 1892, a decree Key, of the circuit court .for the Northern division of the Eastern district Of Tennessee, rondering judgment by deJ'a,ult as to Lovingood, Woody, Hoss, and Fain. On the 10th of Februaryj 1893, a writ of was issued and placed in the hands of tpe United States marshaL On the 24th of May, 1893, this writ Was executed by the United.States marshal byrem(}ving Lovingood, Woody. and Hoss described; the returns' of the marshal from the premises showing furthermore that Fain had been permitted to remain upon the through the agentof,theplaintiffs;'under an agreement between them. On the 10th of February, 1894,an:aHas writ of possession ''WaS awarded, lobe issued on application of complainants. On the 21s(day of April, 1899, a writ of possession was issued by the circuit court of the United 'Statesf6r the Northern' 'division' of the Eastern, 'distri'Ct of Tennessee. This writ. of after recitdefenda;otlil, the ing the names of marshal of the said district should put the complainants intoppssessian of a certain tract or parcel of land, described in the writ as follows:
"In fractional township 2, range 7, East Ocoee distriM;, seQtiolj.,5. section 6, section 7, section 8, section 9, section 1(i, section :L7, section. 18, section 19" sec,l,'lcctlon29, .sectton 30, section 31, section32." tlon 20, Sfjqti\lIl 21,

This,wmtof possession was. placedlin the:Ql1P(ls of Murphy L. United States deputy mavshal for the.Eastern district of of. inTennessee. It· appears Jrom the ,evidence that, in formation received by the said Ander!l();tl from the attorneysrepresenting'the complainants, the deputy marshalanticipated that he would' have trouble in ejecting the defendant Fain l and that he .SUmmaned Barr, thesheviffofMonl.'Oe county, to 'assist him in ejecting' the said Fain. On arriving at the bou.se of Fain, he informed him of his business, and requested him tl> at once give possession of the premises which he occupied. It fUllthel.' appears that Metcalf was

Ik'RE ANDERSON.

the authorized of the and com.l?Jainants in the bill -of equity, and that a,bout this time he .came up arnied with a Winchester rifle, and stated to the said Anderson that he was the agent of the owners of the said property, and was ready to tai{e possession of the property when Fain was It further appears that Anderson informed him that there would probably be some trouble in ejecting- Fain, and that he would summon him to assist him in ejecting the said defendant Fain.. As to whether any resistance was made by Fain, there is some conflict in the evidence; the officers insisting that'Fain made get his gun, which had been taken charge of by one of the officers, and the defendant Fain denying that he made any resistance, but simply stated to the officers that he was a citizen of the state of North Carolina, and lhat they had no right to interfere with'his real or personal property. in that state. It further appears that the officers placed him under arrest, and one of the officers, producing a pair of handcuffs, ordered that they should be placed upon him. On the remonstrance of Fain against this course, he was not handcuffed, but, it appears, was held as a prisoner by them over his protest for a period of two days or more. It'further appears that one Mitchell, an employe of Fain, was also arrested and held in custody for a period of over two hours. The pers<lnal of Fain and MitcheH were then taken by the officers from the house, and hauled a distance of nearly four :rn.iles to a point aCI'oss the state line, or where the state line was alleged to be hy one of the petitioners,-Metcalf. It further appears that the offleers to 4i13mantle the house of Fain to. that extent as to make it uninhabitable. While petitioners were at a place occupied by a party named Roberts, alleged by the petit,ioners to be in the ('ounty of Monroe arid state of Tennessee, and while they still held Fain in their custody, one Elliott, a constable from the county of Cherokee, and state. of North Carolina, with a posse, arrested the petitioners on a warrant is,sued by a justice of the peace of the county of Cherokee, charging petWoners with having committed an assault with a deadly weapon upon Fain. The petitioners were taken to the town of Murphy, in the county of Cherokee, where other warrants eharging them with the offenset3 named in the petition of petitioners were served upon them; also, civil process in arrest bail proceedings: The only question a,rising in this case is whether the petitioners are held in the state courts to answer for an act which they were authorized to do by the laws of the United States, which it was their duty to do as deputy marshals, and whether in the discharge of their duties they did more than was necessary and proper for them to do. The general rule, as laid down by leading decisions of our courts, is that parties being pro,secuted in state courts will not be released: on writs of habeas corpus, but will be left to reach the supreme court of the United States by writ of error. This rule is abundantly sustained by numerous decisions, but it is equally as well estabiished that the federal courts have power to grant writs of habeas corpus if special circumstances require, and that such courts possess a discretion in the matter which must be governed by the facts in each

94

'I'PQM statute imperatively the 'circuit cOllrt by writ of habeas dm'lUs to wrest the petitioner from the custody' of the state officers in advance of 'his: trial in the state court? We are Of the 'opinion that while the 'circuit court' bas power to do so, and may discharge the accused in advance of his trial if be i!j restrained of ,hiS Uberty in Qf the national cQnstitution, it is not, in every -case, to, exercisesuch,a power imme«p,ll-tely upon application beinj;made for the :writ. We cannot suppose that congress intended to compel tbese courts by sucb means to draw to themselves in the first' instance the' trial' of all ,criminal prosecutions commenced in state courts exercising authOtity Within the same telwitorial Iimi,ts, where the accused cla,ims that he is h,eld in custody .in violation of the constitu,tion of the United The injunction to hear the case summarily, and therefore to, dispose of the case as law and just'ieereqilire, does not deprive tbecourt of discretion, That discretion s'hould' be'exerclsed in the light of the relati(>lls existing under our system of Union and of the states, in government between the judicial tribunals recognition, of the fact that the public ,good ,requires that those relations be not disturbed by unnecesSary confijct between courts equally bound to guard and protect rig:Qts secured by the constitlltioll."

,'I11 Re,WOQd, 140, U. j3. 278, 11 Srtp. Gt. 738, the same doctrine is ' laid down, and reaffirmed. <,fln Qook v. Hart, 146, U. S. 183,13 Sup. Ot. 40, the court says:
.,"Whill3t 'I\Qwer, to issue writs.' of habeas: c.orpus to state courts which are proceeding ipdisregard of the right secured, by the constitution and laws of the may exist, the practice of exercising such a power before the question has been rais,ed or determined in the state courts is one which ought not to 'be encouraged. Should such rights be denied, his remedy in the tederal. cQurt9wiII be unimpaired." ,

InRe Frederich,'149tJ. S. 73, 13 Sup. Ct 795,theeourt says:
wiitof habeas corpus is one of the remedies for the enforcement of the right of personal freedo'm. it will not Issue as a matter of course. and it should llecautlously used by federal courts In reference to state prosecutions."

,In New Eno, 155 U. S. 90, 15 Sup. Ct. 30, it is decided that the United States court should refuse to issue writs of habeas corpus unles<s it also appears that the case is one of urgency. In He Belt, U. S. 100,15 Sup. Ct. 987, .ChiefJustice Fuller says that it is only in rare and exceptional cases that such writs should be issued. In Be Swan, 150 U. S. 648, 14 Sup. Ct. 228, }fro Chief Justice Fuller says:
, "We reiterate what has been so often Said before,-that a writ of habeas corpus cannot be used to perform the office of a writ of error or appeal, but when no writ of error or app¢al will lie. or if a petitioner is imprisoned under a judgment of the circuit court which has no jurisdiction of the prisoner or of the SUbject-matter, or authority to render the jUdgment complained of, this relief may be accorded him,"

lIn Re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, the same doctrine is affirmed. 'In Ex paHeRoyall, and other cases cited, is illustrated how carefill federal courts are in exercising a discretionary power to interfere with processes issued under state courts; that it is not onlJ a

IN RE ANDERSON.

493

matter of comity, but is a principle of right and law, and therefore of necessity, and it is the duty of these courts to conciliate, rather than alienate and dissever, the federal and state tribunals, so that they may co-operate as harmonious members of one judicial system. As has been said by a distinguished writer, this machinery of a federal government is at once delicate and complex, and consists of plans and adjustments for all time to come, so that there may be no friction; like the harmony of our solar system, where each planet moves in its own orbit, without any impingement by the greater orb which lights all. In the decisions of the federal courts-both circuit and district courts and the circuit court of appeals-we find many important cases reported relating to proceedings in habeas corpus instituted under the provisions of section 753, Rev. 8t. U. 8. In every instance where efforts have been made by the state courts to obstruct the execution of federal processes placed in the hands of federal emanating from courts of competent jurisdiction, and where the otficers acted within their jurisdiction and within the scope of their process, the courts have never hesitated to throw around them every measure of protection, and to promptly accord to them the privileges of the writ of habeas corpus. Perhaps the most important cases cited are: First, Ex parte 8iebold, 100 U. 8. 371. This case involved the constitutionality of certain sections of title 26, Rev. St., entitled "Elective Franchises." A marshal of the Lnited States was arrested by state officers while attempting to enforce proces1s under this law. In proceedings in habeas corpus he was promptly discharged by the federal courts. L. 8. v. Jailer, 2 Abb. (U. S.) 265, Fed. Cas. No. 15,4()3, is another important case. This was a case where a deputy marshal was arrested by Roberts in endeavoring to serve process upon Call, charged with crime under the internal revenue laws, and who was killed by Roberts. He was arrested by state anthorities, and on proceeding's in habeas corpus was promptly discharged by the United States judge, the proof being conclusive that he was in the actual discharge of his duties when he was assaulted by Call. In this case the judge delivering the opinion says:
"1 all right and power to discharge the relator on any such grounll as that the proof shows that he acted in self-defense. A jury would probably acquit him on such ground, independent of the process under which he acted, but I have nothing to do with such an inquiry. It belongs only to the statE' court. I have only to inquire whether what he did was in pursuance of a law and proeess of the United States, and so justified, not exeused, by that law and proeess."

In Re Neagle, 135 U. S. 3, 10 8up. Ct. H58, it was held that it was the duty of the United States marshal to prated the person of a United States judge; and in an assault made unon sueh judge, where the deputy marshal took the life of the assailant, it was held by the court that he was aeting within the scope of his dutie>!, and that he could not be committed to the eustody of the state C'ouris and tried . for the offense. In He Loney, 134 U. S. 372, 10 Sup. Ct. 584, it was held that a defendant arrested for perjury committed in the case of a C'ontesteo

494

94 FJilDEIt,AL J;tEP9Ij.TER.

i

congresSiional election should; discharged on a writ of. babeas corpus, because a of I'luch perju;ryw,as witbin"' the exqlusive to be cognizance of the courts oHheUl).ited States, prosecuted would greatly, impede: and ,1;pe, a4winistration of justice in the national tribunals. See,also,m J:e E:rug, 79 Fed. corpus were special employes of ,the treasury department. In making a search of the premisea of Yeegee, certain papers supposed to contain :incriminating evidenee against Yeegee were The were indicted.inthestate courtsJor robbery. The judge presidiingin the United States cir,cuit court held that they were in dischar·ge of their official dune!'!, and that, while their conduct was not perhaps entirely what it should have been;",in searching the premises and seizing these papers they f3c!ted in good fajthand with no felonious pUI"p06e or intention, and tbat, as they were il). the actual discharge of their duties, they should be QiijCha,rged.. , . , In .allthese cases it will be observed tbat,in every instance where petitioners in proceedings, in, ,habe8is corpus were discharged, it was upon proof that they were at the time actually engaged in carrying out or enforcing a decree, process, or mandate of the United States conrts;. or mhat the right of: a citizen, secured and! guarantied by the constitution of the United ;States, had been infringed upon. But it will also be· observed that, the vital principle running through our laws is, that, subject to well-defined exceptions, not material to be stated, .here, the authority the United States marshals and their deputies to act in an official capacity is confined entirely to the respectivedistricts:for.,which they hMe been appointed. The official character of such officers can only be recognized in their own districts. Outside of such district,except in certain special cases; not material in, this consideration, they are simply private citizens, and as such amenable to the laws of the place where they chance to be. No warrants can be served by such officers outside of their districts, no process of any character or description can be executed, and their official authority can only be recognized in the districts of which they are officers. In Walker v. Lea, 47 Fed. 645, Justice Lamar, of the supreme eourt, reversing the judgment of the district court,decided that a deputy marshal of the state of Tennessee, while temporarily in :Mississippi, having heard of the whereabouts of a party for whom' himself, went in search of sueh he had a process, and who, party, and while actually engaged in effecting the arrest of such party was arrested by stafe officers, charged with the offense of carrying concealed weapons, was not entitled to be discharged on a writ of habeas corpus instituted in, the federal courts. The effect of tbis decision was to declare that section 788, Rev. St., cited, by counsel for petitioners, providing that marshals and their deputies shall have in each state the same powers in executing the laws of the United States as sheriffs and their deputies may have by law in executing the laws thfreof, refers only to the district, to which the IJ;l.arshals are appointed. See, also, the case
309.. . .' ,..... . In Re Lewis, 83 Fed. 161, the. petitiOners in proceedingsinhabe as

In Ableman v. Booth, 21 How. 524, and U. S. v. Booth, Id., Mr. Chief Justice Taney, delivering the opinion of the court, says:
"No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it Is issued, and any attempt to enforce it beyond these boundaries is nothing less than lawless violence."

In the case of Whitten v. Tomlinson, 160 U. S. 247, 16 Sup. Ct. 302, Mr. Justice Gray says:
"A prisoner in custody under the authority of a state should not, except in a case of peculiar urgency, be discharged by a court or a judge of the United States upon a writ of habeas corpus in advance of any proceedings in the courts of the state. to test the validity of his arrest and detention. To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several states, and with the performance by this court of its appropriate duties." ,

How far courts are bound to interfere for the protection ·of their own officers is a question upon which there are many perplexing conflicting decisions. In Peck v. Jenness, 7 How. 624, the court say:
"It is a doctrine of law too long established to require citation of authorities that where a court has jurisdiction it has a right to settle every question which occurs in a cause, and, whether its decision be correct or not, its jUdgment, till reversed, is regarded as binding in every act, and that where the jurisdic,tion of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, the right cannot be wrested or taken away by any proceedings in another court."

In Erskine v. Hohnbach, 14 Wall. 613, the court says:
"It is easy to see what widespread mischief might result from permitting an executive officer to decide on his own knowledge that he ought not to serve a process or warrant put into his hands for service, and to consider what justly must follow from such doctrine. In short, the executive officer must do hilS duty, which is to obey all legal writs, and must not abrogate to himself the right of disobeying the paramount commands of those to whose mandates by law he is subjected. It seems that the weight of authority and of reason is clearly in favor of the proposition that the officer may safely obey all process fall' on its face, and is not bound to judge of it by facts within his knowledge which may be supposed to invalidate it, aJ;ld which the party aggrieved thereby may Institute against him, although serious errors may have been committed by the officer or tribunal In reaching the conclusion In which the order of process was Issued."

See Savacool v. Boughton, 5 Wend. 171; Earl v. Camp, 16 Wend. 563; Chegaray v. Jenkins, 5 N. Y. 376; Sprague v. Birchard, 1 Wis. 457; Dynes v. Hoover, 20 How. 65. As stated by an eminent text writer, it seems to be that the only question for a ministerial officer is, in the execution of a process coming into his hands,whether such process is issued from a court

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94 li'l11PlilRAL REPORTER.

of competent jurisdictiOJil, and isnegular on its face. If such process is;isSlled by a court of competent jurisdiction, apj is regular on its face, he is by law required to act. The manner, time, and circumstances of his action are' pr:e.'3cribed. He has no discretion. His action may be compelled by legal process. His duty is to do, not reason why. In Illinois there are dicta in a number of cases (Barnes v. Barber, }fcDonald v. Wilkie, 13 Ill. 22), followed by ,an authori6 III. tative deciSIOn (Leachman v. Dougherty, 81 Ill. 324), that where an oflieel' has notice of an excess or want of jurisdiction in the magistrate from his process enianates, he would render himself liable for acting under it. This doctrine has been approved by the courts of 'Visconsin. Sprague v. Birchard, 1 Wis. 457. But these deeisions have not met with general aeceptance. It is expres1sly denied in the state of New York, where the courts deeided, in Webber v. Gay, 24 Wend. 485, and People v. Warren, 5 Hill, 440, that in a case in which jurisdiction to issue the particular proces,s. depended on the defendant's residence within the jurisdiction of the county, and the officer knew him to be a nonresident, such officer was ,not liable for acting under such process. Similar decisions have been rendered in the courts of Connecticut. In Buck v. Colbatlt; 3 Wall. 345, the court held that it was the duty of a court of competent jurisdiction, issuing -its process, to protect its officers from being harassed or interfered with byany person, whether a party to the litigation or not. It has been contended by the able counsel for the respondents in this case that the eircuit court for the Northern division of the Ea,stern district of Tennessee had no jurisdiction of a proceeding in ejectment, and that its proceedings were coram non judice. In support of this contention, Whitehead \T. Shattuck, 138 U. S. 151, 11 Sup. Ct. 277, is relied upon.' Mr. Justice Field, delivering the opinion of the court, says: I
"It will be difficult, and perhaps impossible, to state any general rule which would determine in all cases 'Yhat should be deemed a suit in equity, as distinguished from an action at law, 'but this may be said: that, where an action is simply for recovery and ,possession of specific real or personal property, the action is one at law. An actipn for recovery of real property, including damages for withholding it, has always been of that class. The right which in this case the plaintiff wishes to assert is his title to certain real property, and the remedy which he wishes to obtain ilt its possession and enjoyment; and. in a contest over a title, both parties have a constitutional right to call for a jury."

Referring to the act of the legislature of Iowa conferring jurisdiction upon courts of equity to hear and adjudge causes instituted in such courts for the possession of real property (138 U. S. 152, 11 Sup. Ct. 277), Mr. Justice Field says:
"If that be its meaning, an action like the present can be maintained in the <,'ourts of ,that state, where equitable and legal remedies are enforced by the saine system of procedure and by the same tribunals, It thus enlarges the powers of a Court of eqUity as exercised in the state courts, 'but the law of that state cannot control the proceedings in the federal courts, so as to do away with the force the law of congress declaring that 'suits In equity shall not be sustained in either of the courts of the United States ill any case where a plain, adequate, and complete remedy may be had at law,' Or the constitutional right of the parties in action at law to a trial by jury."

IN RE ANDERSON.

491

It is true that in every proceeding of a judicial nature there are one or more facts which are strictly jurisdictional, the existence of which is necessary to the validity of the proceedings, without which the action of the court is a mere nullity; such, for example, as the service of process in the state of the defendant in a common-law action. D'Arcy v. Ketchum, 11 How. 165; Webster v. Reid, Id. 436; Pennoyer v. Neff, 95 U. S. 714; Noble v. Railroad Co., 147 U. So 173, 13 Sup. Ct. 271. If this position be correct, as urged by counsel for respondents, the proceedings in the circuit court in Tennessee in this case were coram non judice, and the writ of possession issued by such court, and placed in the hands of the marshal for enforcement, was a nullity; but this court is not an appellate court, nor has it any power to modify or annul the judgment of a federal court in another state. But, while it is vested with no such powers, it certainly can inquire, in a proceeding such as is now pending. before this court, whether the petitioners attempted to execute a process emanating from a federal court in the state of Tennessee in the state of North Carolina, or whether such officers, in attempting to enforce such a process outside of the limits of their state, and in the confines of another state, committed an assault with deadly weapons upon a citizen of this state, or arrested him without process or without reasonable cause or justification, or' destroyed his property, such property being within the limits of this state. Certainly, if such officers crossed the boundary lines between the states of Tennessee and North Carolina, and, entering upon Carolina territory, proceeded to violate the laws of this state, such officers were not in the discharge of any duty enjoined upon them by the laws of the United States, nor were they executing any process or mandate issued by the courts of the district of Western North Carolina. It is insisted by the petitioners that they were acting within the limits of the Northern division of the EMtern district of Tennessee in executing this process, issued, as they insist,by the circuit court of the said district,-a court of competent jurisdiction. In attempting to ascertain whether such officers crossed the state line and executed such process in the state of North Carolina, much evidence was introduced by both the petitioners and respondents, and heard by this court. It appears from such evidenc.e that in the year 1789 an act was p3---"Sed by the general assembly of the state of North Carolina, known as the "Cession Act," empowering one of the senators of the state of North Carolina, and two of the representatives, to execute a deed or deeds on the part and in behalf of the state conveying to the United States of America "all right, title and claim which the state has to the sovereignty and territory of the land situate within the chartered limit8 of the state west of the line beginning on the extreme height of the Stone at a place where the Virginia line intersects it; " " " thence to a place where it is ealled the Great Iron or Smoky Mountains; thence along the extreme height of the said mountain to a place where it is ealled to Unaco.y or Unaka Mountain, between the Indian towns of Cowee and Ola Chota; thenee along the main ridge of the said mountains to the
94 F.-32

498

94 FEDERAL REPORTER.

southern 'boundary of this state." See Rev. St N. C. p: '172. A con· trover-By aroseconceriling the Unaka ':Mountain, and commissioners were/appointed by an act passed in: 1796 by the legislature of Tennessee and''fhe legislature of North Carolina to ascertain which was the mo1.inta'inso called in the act of cession. In 1819 an act was passed by the North Carolina legislature declaring that it was essential to the interests of this state in the disposal of the lands lately acquir-ed by treaty from the Indians, and to the continuance of the good understanding and happiness subsisting between this state and the state of, Tennessee, that the boundary lines between the two statesshonld be accurately run, distinctly mar-ked, and permanently estabiished.' The commissioners met at Newport, Tenn., on the 14th of July, 1821, to, make the necessary arr-llngements for running and completing the line between the two states. See Rev. St. N. C. p. 93. In the year 1821 an act was passed by the legislatures of both the states of' Tennessee anll North Carolina confirming the boundary line by thesecoillmissioners, and located and marked by the corillnisSioners appointed by the two states. The act ,of the North Oarolina legislatur-econfirming said boundary line specifies that the whole line was distinctly marked as follows: "Two chons and a 'blaze on each fore and aft tree; three chops on each side line tree; a mile mark at the end of each mile." The evidence as to the location and marking of this line with the mar-ks described in the' act of 1821 'by the commissioners appointed by the states of Tennessee arid North' Carolina is, to my mind, ,conclusive. There can be no sort of 'qUeStion but that the line was established, located, and marked ob what is known as the "state ridge line/, and which has been gener-ally recognired fro,m that date to this as the true boundary line between 'the states' ()fTennesseeanWNorth Carolina. The petitioners insist that this was not the true line between. the two states, and not' 'the line located and marked by the commisSioners under the acfOf;181'9. They:insist that the line marked on the maps in evidence, 'referred to as the "rainbow-line," i,s the true boundary line between the 'twostMeiili but there 'seems to be very'little proof to sustain that, contention!' The weight, of the is that the line known 'cur ridge line" was the'line located and marked bttheeommissiot1E!rs";that tM aet of the'commissi()ner-s in so locatbig and marking this tine'was fully, ratified· and approved by the pe6pleof the states of Tennessee and North Carolina, through their respective gene:ralassemblies, 'by Act i821: It is true that the state of Temressee' ihlUl'iSsuedgrants for the land within what are known as the state ridge and rainbow lines,and itifll probable that the lands claimed bySteVenllon' all.dWetinore are withih thlsboundary, though it appears no'acWal surveyhftS been' made of the alleged rainbow line. But it isa:lso true tha;t the state of North Carolina has for many yearsexetdsed slrvereigilty over the sameterHtory,by issuing grants to itscidtens,colleciing taxes from th:em, requiring them to wor-k its pub'lic' 'roads!andrecognisoli.ng residentswithiIl<' that territory as citizens, of North' OIlroliila:. If the state ridge 'line be the correct and trne dividing lin.ebetween the states,-a fact of which, from the' evidence submitted to this court, there can be no doubt,-

was

IN RE ANDERSON".

499

che act of Anderson, Barr, and Metcalf in crossing Jhe state line and forcibly ejecting from his possessions a citizen of North Carolina, who held his title under' and by virtue of a grant from the state of North Carolina, in violently dispossessing the said Fain, a citizen of North Carolina, and in removing his personal effects a distance of four miles, against and over his protest,in committing an assault upon him with deadly weapons, in threatening to upon him, and in arresting him and holding him in custody for a period of over 48 hours, without any warrant and without any reasoml.ble excuse or justification, was an act nothing short of lawless violence on the part of such officials. Under the process issued by the circuit court of Tennes,see, a court of competent jurisdiction, these officers had the undoubted right to enforce such process to its fullest extent within the juri%diction of the United States circuit eourt for the Northern division of the Eastern district of Tennessee, but not one inch beyond such district. Whenever they crossed the boundary lines of a sovereign state, they ceased to be officers. They were private citizens only, and had no right to arrest a citizen of Oarolina and subject him to imprisonment or indignities. No eourt will go further than this court in protecting the officers of the federal government in the discharge of their duties; and if at any time such officers, in the peaceable and lawful discharge of their duties within the jurisdiction of this court, are interfered with or obstructed in any way, directly or indirectly, by the officers of the state, or officers acting under the instruction of state courts or tribunals, immediate relief will be granted them by this court, upon the proper application for the same. But officers of the federal government must act within their own jurisdiction, and always within the scope of their warrant· or process. Federal courts were not established for the purpose of discharging federal 'officials when charged with violation of state laws, simply because they hold commissions from the federal government; nor was this statute granting relief to federal officers when charged with violation of state laws passed for the purpose of relieving such officials from deserved prosecution and conviction in the state courts, but the statute was passed to prevent needless, unnecessary, or unlawful obstruction and hindrance of federal officials when actually carrying out or enforcing the laws, decrees, or mandates of the United States courts, and while acting within their jurisdiction, and within the limits of the warrants or process in their hands. In this case there can be no reason why the petitioners cannot have a fair and impartial trial in the courts of the state of North Carolina. If their contention be true, that they were engaged in executing a process issued by the circuit court of Tennessee in the county of Monroe, in the state of Tennessee, and acting strictly within the limits of such process, certainly they are not guilty of any violation of the laws of North Carolina. If manifest wrong or injustice is done them in such courts, they have the right to invoke the aid of tIie federal courts, even after judgment rendered by the state courts. The writ of habeas corpus in this case is denied, and the prisoners remanded to the custody of the state court.

The name "Vichy," as applied to mineral waters, is a geographical name, used generally by the OWllers .of springs near Vichy, In France, to designate the of origi.n." and Indicate the general characteristics of their waters. It Is not a trade-mark or trade-:Q.ame in a legal sense, and a suit by such owners against a defendant for applying the naDie to artificial watellS can only be maintained on the theory of unfair compet1tion. 1SAME-UNFAIR COMPETITION-LACHES.

MINERAL

2.

Defelldant's testator began the manufacture of artifieial "Vichy" water In Newrork In 1862, advertising and selling the same under the name of "Schultz'sVichy Water," as his own product. and as made from analyses of the natural spring water. His waters att'lilned a high reputation and a large sale, being considered by many superIor to the natural 'water. There was, .no attempt at deception, and his labels were entirely dissimilar from those under which the natural spring water was sold; Held, that the use of the name "Vichy" In connection with this product did not tend appreciably to confuse the Identity of the natural and artificial products, but, even if it did so, It having been begun in good faith, and eontlnued for 30 years. without objection 011 the' part. of complainants, they could not be heard .to assert the right to an Injunction. 2

This was a suit by' La Repu1:>1ique Francaise and others against Louise SChultz, executrix, for alleged infringement of r:ights in a trade-name. Rowland Cox,. for Antonio Knawth, fordefendapt W ALLAOE, Circuit Judge. Upon the proofs in this case it is clear that tl;ie name "Vichy" is not a trade-mark or trade-name of the complainants in the strict legal sense of the term, but is a geographical name, applied by them as well as various other owners of mineral sprin.gs at or near Vichy, 'in the department of Allier, France, to designate the locality, of origin, and indicate the general characteristics of the waters. The bill can only be maintained upon the theory of unfair competition by the defendants and their testator in applying that name to the artificial mineral water manufactured and sold by them in this country; Canal Co. v. Clark, 13 Wall. 311; :Ylill Co. v. Alcorn, 150U. S. 460, 14 Sup. Ct. 151; Association v. Piza, 23 24 Fed. 149; Newman v. Alvord, 51 N. Y. 189; Wotherspoon v. Currie, L. R. 5 H. L. 508-513. For 50 J'ears or more artificial mineral waters approximating more or less closelJ' in their ingredients and properties to the natural VichJ' water have been prepared and soldbJ' the name of "VichJ''' by manufacturers in Europe: and in this countrJ'. Natural waters lo'se their original :virtues, more, or less, when removed from their sources, while. artificial waters manufactured under pressure of carbonic acid gas remain intact in all their ingredients. Mr. Schultz, the testator
1 As to unfair competition in trade, see note to Scheuer v. Muller, 20 C. C. A. 165, and, supplementary thereto, note to Lare v. Harper, 30 C. C. A. 376. 2 For laches as a defense In suits for infringement oj' patents, copyrights, and trade-marks. see note to Taylor y. SplndieCo., 22 C. C. A. 211.